United States District Court, W.D. Arkansas, Fayetteville Division
OPINION AND ORDER
HOLMES, III CHIEF U.S. DISTRICT JUDGE
the Court are Defendants University of Arkansas-Fayetteville
and Board of Trustees of the University of Arkansas's
(collectively, “the University”) motions to
dismiss (Doc. 7) and stay discovery (Doc. 12). The University
has filed briefs in support (Docs. 8, 13), and Plaintiff
Elizabeth Fryberger has responded (Doc. 11) to the motion to
dismiss. Fryberger has not yet filed a response to the motion
for stay, but no response is necessary. For the reasons set
forth herein, the University's motion to dismiss will be
granted in part with respect to Fryberger's Campus SaVE
Act claim, and otherwise denied. The University's motion
for a stay will also be granted in part as set forth herein.
complaint (Doc. 1) asserts three causes of action. Fryberger
alleges unlawful gender discrimination and a hostile
educational environment in violation of Title IX and a
violation of the Campus SaVE Act. In her response, Fryberger
apparently concedes that her Campus SaVE Act claim is subject
to dismissal and proposes to amend her complaint to dismiss
that claim without prejudice. (Doc. 11, p. 2). The Court will
dismiss the Campus SaVE Act claim without prejudice.
Fryberger need not file a motion to amend her complaint to
omit this claim.
University argues for dismissal of the Title IX claims on two
grounds. First, the University argues that Fryberger's
Title IX monetary claims against it are barred by Eleventh
Amendment sovereign immunity. Second, the University argues
that even if sovereign immunity does not bar Fryberger's
claims, she has failed to allege facts that are sufficient to
state a plausible claim for relief. The University's
motion to stay discovery separately argues that a stay is
appropriate because if it has to engage in discovery, it is
losing the benefit of sovereign immunity, which protects it
from the time and expense of litigation.
University's sovereign immunity argument appears to the
Court to have been resolved, and the University's cited
cases calling into question the availability of a damages
remedy against a state in an implied right of action appear
to pertain to cases where recovery is not under Title IX.
“[A] damages remedy is available for an action brought
to enforce Title IX.” Franklin v. Gwinnett Cnty.
Pub. Schs., 503 U.S. 60, 76 (1992) (holding that
monetary damages are included in the remedies set out in 42
U.S.C. § 2000d-7(a)(2)). Actions brought to enforce
Title IX may be brought against a State. See 42
U.S.C. § 2000d-7(a)(1) (“A state shall not be
immune under the Eleventh Amendment of the Constitution of
the United States from suit in Federal court for a violation
of . . . title IX.”); see also Crawford v.
Davis, 109 F.3d 1281, 1283 (8th Cir. 1997) (“We
note at the outset that Congress has unequivocally expressed
its intent to abrogate the states' Eleventh Amendment
immunity for Title IX claims.”). Therefore, a damages
remedy is available for an action brought against a state to
enforce Title IX. The University's motion to dismiss on
the basis of sovereign immunity will be denied.
University's argument that Fryberger has failed to state
a claim is unavailing. On a Rule 12(b)(6) motion to dismiss
for failure to state a claim, the Court accepts the alleged
facts as true and grants all reasonable inferences that can
be drawn from those facts in the Plaintiff's favor.
Gallagher v. City of Clayton, 699 F.3d 1013, 1016
(8th Cir. 2012). Where facts and reasonable inferences
“raise a reasonable expectation that discovery will
reveal evidence” in support of a plaintiff's claim,
the Court should deny a motion to dismiss. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 556 (2009).
Fryberger's arguments in part C of her response (Doc. 11,
pp. 6-15) are well taken. The University has not met its
burden to show that Fryberger's claimed right to relief
is only speculative, or that she cannot recover, and
Fryberger has alleged sufficient facts in her complaint to
raise a reasonable expectation that discovery will reveal
evidence in support of her claims. Dismissal is inappropriate
at this stage.
the claims against the University are not barred by sovereign
immunity, the Court would be inclined to deny the motion for
stay. The University has signaled its intent to appeal any
decision contrary to its sovereign immunity position,
however, and because the Court cannot say that any appeal on
the immunity issue would be entirely frivolous, a stay during
that appeal is appropriate. See Goshtasby v. Bd. of Tr.
of Univ. of Ill., 123 F.3d 427, 428 - 29 (7th Cir.
1997). Therefore, the Court will stay these proceedings. Upon
motion of a party notifying the Court that the time for
appeal has passed with no appeal having been filed, or upon
receipt of the decision of the Court of appeals, the Court
will lift the stay.
THEREFORE ORDERED that Defendants' motion to dismiss
(Doc. 7) is GRANTED IN PART and DENIED IN PART. The motion is
GRANTED insofar as Plaintiff's Campus SaVE Act claim is
DISMISSED WITHOUT PREJUDICE. The motion is otherwise DENIED.
FURTHER ORDERED that Defendants' motion to stay discovery
(Doc. 12) is ...